The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand

Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked. That psychic discomfort is the price we pay for basic civic peace. It's worth it. It's a pragmatic principle. Defend everyone else's rights, because if you don't there is no one to defend yours. --MaxedOutMama

The most glaring example of the cognitive dissonance on the left is the concept that human beings are inherently good, yet at the same time cannot be trusted with any kind of weapon, unless the magic fairy dust of government authority gets sprinkled upon them.--Moshe Ben-David

The cult of the left believes that it is engaged in a great apocalyptic battle with corporations and industrialists for the ownership of the unthinking masses. Its acolytes see themselves as the individuals who have been "liberated" to think for themselves. They make choices. You however are just a member of the unthinking masses. You are not really a person, but only respond to the agendas of your corporate overlords. If you eat too much, it's because corporations make you eat. If you kill, it's because corporations encourage you to buy guns. You are not an individual. You are a social problem. --Sultan Knish

All politics in this country now is just dress rehearsal for civil war. --Billy Beck

This law allows holders of valid permits from these states to carry a concealed weapon while in the State of Nevada. The permit must be in the possession of the issue at all times while carrying a firearm.

Monday, June 13, 2011

If you haven't read Walter Russell Mead's When Government Jumps the Shark, I strongly advise you to. In it, Mr. Mead divides .gov programs up into five distinct stages that I think are brilliant in their concise descriptivity:

Great White Hope

Great White Father

Great White Elephant

Great White Shark

Great White Whale

My first exposure to Mr. Mead came from another brilliant essay, The Jacksonian Tradition, which I found via Steven Den Beste many years ago, and I've cited it in several pieces here. He's not lost anything in the ensuing decade.

Like it or not, the United States is a revolutionary power. Whether our government is trying to overthrow foreign dictators is almost irrelevant; American society is the most revolutionary force on the planet. The Internet is more subversive than the CIA in its prime. The dynamism of American society is constantly creating new businesses, new technologies, new ideas and new social models. These innovations travel, and they make trouble when they do. Saudi conservatives know that whatever geopolitical arrangements the Saudi princes make with the American government, the American people are busily undermining the core principles of Saudi society. It’s not just our NGOs educating Saudi women and civil society activists; it’s not just the impact of American college life on the rising generation of the Saudi elite. We change the world even when we aren’t thinking anything about global revolution — when Hollywood and rap musicians are just trying to make a buck, they are stoking the fires of change around the world.

A revolutionary nation cannot make a conservative foreign policy work for long.

Sunday, June 12, 2011

That’s not to say the picture of Palin is all rosy. She whines constantly about her treatment by the press. She uses subterfuge to manipulate her image, ghostwriting a letter to the editor praising her, for instance, or conducting a phony television interview in which she reads answers from a teleprompter.

She increasingly sees enemies all around, repeatedly demanding to know whether her privacy has been breached. In one case, it turns out her husband Todd, not a hacker, sent an email from one of her accounts. She convinces herself that rumors about her last pregnancy have been deliberately and maliciously spread by an enemy in the state Legislature.

The seeds of the paranoia and belligerence that so prominently mark her current public persona are visible in early form.

This on a piece about the media's pathetic feeding-frenzy over the publication of nearly 25,000 emails dating back to prior to 2008.

I like Palin insofar as she makes the right people's heads explode. She's playing the MSM like a fiddle and they're dancing to her tune every single time. The woman can give the talking heads on TV the vapors by just ordering a value meal from McDonalds. When she was running as the VP, I read a lot into her tenure as Alaska's Governor and her record was fairly decent. She had faults and failures which meant she was human, but overall it did appear she ran a much more conservative governorship than anything I've ever seen. But, I don't really see her as some sort of American Savior.

That job falls to the Americans.

We need to stop letting these idiots who can't even keep their privates off of the Internet run our country into the ground. We need to stop bending over with each new unconstitutional law they pass and start ignoring them. The key word there is WE, not some politician (and make no bones about it, Sarah Palin is still a politician) who will come in with a magic wand and make all the bad things go away. It’s that false belief in 'Hope & Change' that got us here today, and I'm not just talking about Obama.

Friday, June 10, 2011

Jennifer asked her readers to explain "How did that happen? How did you become gunnies?" The answers have been fascinating. I've left my own tale in a post below this one, but today's QotD comes from Big Smart Human's story:

My husband & I discussed getting an NRA bumper sticker — not actually joining the NRA, mind you! Just having the bumper sticker on our car. We thought about what to do to make it appear that we are armed.

And then I realized: the way to appear armed is to be armed; the way to appear dangerousis to be dangerous.

--

That was three years ago. It has been a slow and steady escalation of knowledge, skill and firearms ever since.

EXACTLY! (All emphasis mine, all links in the quotation are mine also.) What she describes is exactly what the Left fears most about an armed populace - that they can be an empowered, confident group of citizens that trust themselves, and can tell their self-annointed "betters" to go to hell. She exemplifies what I've been writing about here for eight years now.

Thursday, June 09, 2011

The lovely Jennifer of In Jennifer's Head was among the many bloggers I met at the recent LuckyGunner.com machinegun shoot outside of Knoxville. In a post today, she asked a question of her readers:

The vast majority of my readers are firearms enthusiasts of some stripe. How did that happen? How did you become gunnies?

This question has inspired many long comments and blog posts, all very interesting (and one which has given me tomorrow's Quote of the Day.) I left a link to the second post published on this blog, but after reading many of the other responses, I realized that it did not actually address her question.

Actually, I have answered this question before, but damned if I can find the post now, so here goes, in proper TSM (read: LONG) style.

I've always been fascinated with firearms, at least as long as I can remember. My father owned guns, a .38 revolver, a .22 bolt-action rifle, and a sporterized Lee-Enfield rifle. The revolver belonged to his father, the rifle was a gift from my mother - a relative of my father's was a hobby-gunsmith, and he built it at her request from a rifle selected from a bunch of surplus tomato-stakes at the local hardware store some time back in the late 1950's. The Enfield was a No. 5 Mk I Jungle Carbine that the family gunsmith put into a beautiful two-piece walnut stock with a Monte Carlo rollover cheekpiece. It didn't carry a scope, but had the flip-up ladder rear sight.

Still, dad wasn't a hunter, and our shooting trips were rare. I can only remember shooting that rifle once as a kid. It KICKED. The revolver was so old its timing was off and it shaved lead, so we didn't shoot it. What we did shoot was that old .22. I honestly don't remember the make. I think it was a Remington, but I can't be sure. Bolt-action, tubular magazine, iron sights. That one I probably shot six times while growing up. Guns just weren't high on the family activity list.

The guns stayed in my parent's bedroom closet. The ammunition for them (what little there was) was on the shelf in the closet.

And we, my brother, sister and I, left them ALONE. Growing up, I know there were guns in the homes of many of my friends, but we didn't screw with them. We certainly didn't go shooting up our schools.

We moved to Florida when I was four years old. I know that some time between when I was six and probably ten, my brother got a Daisy Red Ryder BB gun. I remember it being so hard to cock that I had to brace the buttstock against the inside of my knee to have enough mechanical advantage to work the lever, but it held a LOT of BBs. Bugs, tadpoles, frogs and other tiny creatures lived in fear of us, but it wasn't accurate enough to hit much of anything on purpose. Still, I loved the thing.

Each summer my family would make our vacation pilgrimage to Virginia to visit relatives. Both of my parents are from the Appalachian coal-country of the western end of that state, and a majority of our relatives still live in the general vicinity. My paternal grandmother did, and we visited her once a year without fail.

But the highlight for me each year was the visit to my mother's uncle, Uncle Billy. Billy lived in a house that had, once upon a time, been a general store and saloon. The room where he spent the majority of his time was the space that had been the saloon, and it had a very high ceilings with pressed-tin panels, darkened by decades of coal smoke from the big furnace that took up one side of the room. Billy had a huge (for the time) color TV with a remote control, so he could change the channel and adjust the volume from the comfort of his recliner on the other side of the room.

But what else was in that room was what held my fascination.

On the wall above his chair was a gun rack with two long-guns in it; a 12 gauge pump shotgun, and a rifle below. On the bookshelf next to his chair was a leather holster holding a 1911 pistol, and in the corner was a glass-faced gun case literally filled with rifles and shotguns, loose ammo laying around on the bottom of the enclosure.

But it was the rifle hanging next to his chair that got my attention.

It was the most beautiful thing I'd ever seen. As I got older and could investigate better, I learned that it was a sporterized 1894 Swedish Mauser carbine. It had probably started out as another Five-and-Dime $5 tomato-stake, but it was that no longer. Now it sported a full-length Mannlicher stock of birdseye maple, blonde wood with beautiful intricate dark figure. It, too had a Monte Carlo cheekpiece, and a curved pistol grip. It had a hooded gold bead front sight and a micrometer adjusted rear aperture sight. It had a double-set trigger and a butterknife bolt handle. The receiver, floorplate, trigger guard and barrel were deeply blued, the bolt handle was polished, and the bolt body was machine-turned. At the forend, instead of a muzzle cap, there was a muzzle brake behind the front sight, the top of the cap being drilled out in a geometric pattern. And sitting below the rifle for all the years we visited was a five-round stripper clip loaded with round-nose 6.5x55 Mauser ball ammo, just in case he ever needed it.

By the time I was old enough to go, Billy didn't shoot anymore other than the .22 pistol he shot into a bullet trap across the room when the mood struck him. (Never when we kids were present, though. Still, just the thought of shooting a gun in your own house was exotically cool.)

But I was in love. I might not have known much about guns, but I was in love with that Mauser.

It was a love that stayed with me as I grew older.

When I was twelve, we moved from Florida to North Carolina. In Florida, the back of the neighborhood was nothing but abandoned orange grove, so we could fart around back there with the Daisy to our heart's content. Nobody thought twice about seeing kids riding bicycles and toting air rifles. In North Carolina, my back yard was about a half-mile of forest. The Daisy had long since stopped working. I wanted an AIR RIFLE. At about age 13, I got one, a Daisy Powerline 880 pump-pneumatic rifle that could also use pellets if single-loaded.

I learned to make that thing sing. I was the terror of the backyard squirrels, and they learned to stay the hell out of the garden. Later I bought a cheap CO2 cartridge pellet pistol, but I learned quickly that its accuracy left much to be desired. The Daisy died a tragic death when it tried to digest an oversized BB, and the barrel split at the breech end. Ah well, such is life.

At 19 we moved again, this time to Arizona. My new home sat atop a hill on 3.3 acres of land, and it just so happened that the distance from directly in front of the front door to the opposite side of the driveway was 75 feet - twenty-five yards. There was nothing but desert for another hundred yards past that point. I bought a Crosman 1377 pneumatic pump-up air pistol. That thing had the worst trigger I have every experienced - pull, wait. Pull, wait some more. Pull just a bit more . . . PFFFFT! It defined "heavy" and "creepy."

But if I did my part I could make five shots go into one ragged hole at 25 yards. It took fifteen minutes to make those five shots, but still.... I learned to shoot in the Creedmoor position with that gun. It was perfect for it. I bought a tiny set of steel silhouette targets and shot them all (including the chicken) at 25 yards.

At 21 I was ready for a real firearm. I wanted a .357 Magnum. My parent's house had been burglarized, and among the things stolen were my father's three guns. Dad replaced the old .38 with a new Dan Wesson Model 15 .357, and the .22 rifle with a Smith & Wesson Model 1000 12 gauge. His Dan Wesson had the 4" barrel with the heavy shroud, and you bet your ass I shot it. But not much. Not nearly enough. I wanted one of my own. I was attending the University of Arizona at that time and living on campus. How, I said to myself, am I going to justify buying a revolver to my parents?

I got a part-time job as a rent-a-cop. I had to provide my own weapon, in either .38 or .357 (.38 ammunition only was authorized), so I got my Dan Wesson. I learned three things quickly: shooting factory ammo is expensive, it is difficult to learn to shoot a revolver well, and most security guards never bother to.

Next, so I could afford to shoot, I bought a Ruger MkII Target with the 5" bull barrel. I had a choice - put new tires on my car, or buy the pistol. I compromised. I bought the cheapest bias-ply tires I could find, AND the pistol. The tires sucked, but held air. The pistol worked flawlessly.

I graduated from college and moved out on my own. When I finally started earning enough money that I could get off the Beanie-Weenie diet, I bought a cheap Lee reloading press kit and started reloading for .357. That pistol was a tack-driver. It preferred 110 grain bullets, and it liked them as fast as I could push them safely, but it was one of those early Dan Wessons with quality control problems, and it died an early death. I actually still have the frame in the back of the safe, but it's not worth shooting anymore.

With a little more income, I bought a tomato-stake of my own, a No. 4 Mk I Lee-Enfield. I've been convinced from my youth that the proper way for a bolt-action rifle to work is cock-on-close, and I wasn't about to change. Unfortunately, I should have left that particular tomato-stake at the gun shop. The barrel was bulged about halfway down, and I learned (much to my chagrin after owning it for several years) that it tended to throw bullets sideways.

I bought a couple more guns as I could afford them, an 1896 Swede milsurp, a Springfield Armory P9, a Mossberg 590 riot gun, and one of the first Chicom-import folding-stock AKs when they came on the market in the late 80's. After the Stockton massacre, I decided I really didn't want it that bad anymore, so I sold it (for three times what I'd paid for it) and bought a Ruger M77 .308 rifle and a scope. I think this was really the first time it became apparent to me that there were people out there who wanted to disarm the law-abiding public. Prior to this, "common-sense gun control" to me was just an understandable knee-jerk reaction that wouldn't solve anything, but it made people feel better. As Uncle puts it, Gun Control: What Politicians Do Instead of Something. But the hysterical calls for bans on "assault weapons" got my attention, at least a little. I'm not sure, but I think I might have joined the NRA about that time.

In 1993 I met my wife-to-be. The day we met my family had driven down to Benson, Arizona for one of our rare group shooting outings on the property of some friends of ours. We brought pretty much everything we owned, and we joked on the way down that if we were pulled over, we'd have a hard time explaining to the State Trooper why we had enough firepower to overthrow a small country. Looking back, we really didn't have that much, probably nine or ten firearms for the five of us, and a few hundred rounds of ammo, but it was a lot to us at the time. That evening when I met Kaoru for the first time, I told her that I was a shooter, and that if that was going to be a problem we should probably move on. It wasn't, but all she really knew about guns she'd gotten from the media: movies, TV shows and news, newspapers and magazines. She wasn't put off, but she wasn't particularly enthusiastic, either. I could deal with that, though.

Two years to the day after we met, we married, and on the following Father's Day (she has a daughter by a previous marriage) she gave me a Ruger 10/22. "Oh, Love," I told her, "you have no idea what you just started."

The rest, as they say, is history. Because my wife had only her skewed view of guns and gun owners prior to meeting me, I learned that a lot of people believed a lot of bullshit. The internet was around by then, and I was on it - first in the mosh pits of talk.politics.guns, and later gun boards, other message boards and blogs. I read books. I read op-eds. I read what were supposedly "news stories" that sounded like anti-gun organization press releases (because they were). I read laughably error-filled crime report stories involving .9mm service revolvers and 40mm fully-automatic pistols. I watched the news closely.

I got really pissed off about being lied to, and I started studying.

Now I have a safe full of guns, a couple of nice progressive presses, a LOT of loaded ammo, a lot MORE components, an eight year old gunblog, and enough knowledge that I could do a PhD thesis on what I've learned. I'm even more pissed off now, but on a larger scale and about more important things. I've been to numerous events, met dozens of gunbloggers, and I truly believe that we're winning on the topic of the Second Amendment.

I have stated over the life of this blog that I believe that the education system has been suborned by "true believers" in socialism, Leftism, "progressivism," Marxism, communism, call it what you will. I have stated that these people, without a need of a vast Red conspiracy with monthly planning meetings, naturally gravitate to media and education to spread their faith because they believe they know the truth and it is their self-imposed mission to spread the Gospel. Education and media provide the best path for their evangelism, and while I harp on Antonio Gramsci, I doubt seriously that most of these people have heard of him. Gramsci just wrote about the need to undermine Western culture so that socialism could triumph. He was hardly alone in reaching that conclusion. It didn't take the Frankfurt School to make people spontaneously choose to do the undermining, that group just provided, with Germanic efficiency, an organized agenda for those who were willing to do a little research.

But the amateurs have done very well all on their own.

No, what Zombie's latest photo-essay illustrates is precisely that fact - that de-moralizing indoctrination is very much alive and well in the public education system, far beyond any honest person's ability to deny. Go, look at the pictures. Read the protest signs. Tell me that Marxist ideology has faded away with the fall of the Soviet Union.

Wednesday, June 08, 2011

I think we're raising whole generations who regard facts as more or less optional. We have kids in elementary school who are being urged to take stands on political issues, to write letters to congressmen and presidents about nuclear energy. They're not a decade old, and they're being thrown these kinds of questions that can absorb the lifetime of a very brilliant and learned man. And they're being taught that it's important to have views, and they're not being taught that it's important to know what you're talking about. It's important to hear the opposite viewpoint, and more important to learn how to distinguish why viewpoint A and viewpoint B are different, and which one has the most evidence or logic behind it. They disregard that. They hear something, they hear some rhetoric, and they run with it. -- Uncommon Knowledge, Economic Facts and Fallacies interview, Part V

Thomas Sowell is now 80 years old. I get the feeling that he's glad that he won't be around to see the worst of what's coming.

Tuesday, June 07, 2011

The federal government's financial condition deteriorated rapidly last year, far beyond the $1.5 trillion in new debt taken on to finance the budget deficit, a USA TODAY analysis shows.

The government added $5.3 trillion in new financial obligations in 2010, largely for retirement programs such as Medicare and Social Security. That brings to a record $61.6 trillion the total of financial promises not paid for.

--

The $61.6 trillion in unfunded obligations amounts to $534,000 per household. That's more than five times what Americans have borrowed for everything else — mortgages, car loans and other debt. It reflects the challenge as the number of retirees soars over the next 20 years and seniors try to collect on those spending promises.

But not to worry, a "liberal" spokesman says:

Michael Lind, policy director at the liberal New America Foundation's economic growth program, says there is no near-term crisis for federal retirement programs and that economic growth will make these programs more affordable.

"The false claim that Social Security and Medicare are about to bankrupt the United States has been repeated for decades by conservatives and libertarians who pretend that their ideological opposition to these successful and cost-effective programs is based on worries about the deficit," he says.

That's because conservatives and libertarians have been RIGHT ABOUT IT FOR DECADES. The liberals have pooh-poohed the warnings for decades because of their ideology, and the chickens, as the saying goes, are now coming home to roost. "Cost effective"? COST EFFECTIVE??

The government has promised pension and health benefits worth more than $700,000 per retired civil servant. The pension fund's key asset: federal IOUs.

Lie to the nation about having sex with an intern… you might be a psychopath.

Having multiple public affairs while putting at risk the largest endorsements in the world… you might be a psychopath.

Cheat on your wife and have a love child with house hold staff… you might be a psychopath.

Cheat on your wife with $3,000 an hour prostitutes while prosecuting others… you might be a psychopath.

Divorce your wife while she is recovering from surgery… you might be a psychopath.

Cheat on your wife, father a love child, have a sex tape, and asking for a divorce, while your wife is dying form cancer… you might be a psychopath.

Blow a million dollar TV career on coke and hookers… you might be a psychopath.

Create financial instruments that you knew were going to blow up the housing market… you might be a psychopath.

Create a billion dollar Ponzi scheme to steal billions… you might be a psychopath.

Hide billions of losses in off the books shell corporations to pump up your stock… you might be a psychopath.

Claim that you are doing “God’s work” while your company sucks the life blood out of the company… you might be a psychopath.

Show no remorse for 500,000 dead Iraqi children… you might be a psychopath.

Lie to a nation about the real reason we are going to war… you might be a psychopath.

Lie to a nation about the real strength of the dollar… you might be a banker.

Talk about coming back as a deadly virus to eradicate over population… you might be a psychopath.

Create and fund wars to steal others natural resources… you might be a psychopath.

Help support tyrannical regimes all over the world… you might be a psychopath.

Holding up the American taxpayer to bailout your buddies… you might be a psychopath.

Perpetuating a huge lie in order to to become a carbon credit billionaire and sexually assaulting a masseuse … you might be a psychopath.

These are the people who grasp for the levers of power. These are the people we're supposed to trust to do what's right, not what is personally beneficial, expedient, easy. These are the people the media is supposed to vet, not anoint.

There's a preponderance of psychopaths, people with a complete lack of human empathy at the heart of the political and business elites.

But Government = Good, Business = Bad! That's what we're constantly told. Just put the right people in charge of government, and things will be made RIGHT!

But it never is. And it's never their fault. The solutions were just poorly implemented! There was too much resistance from reactionaries! We didn't spend enough money! The philosophy cannot be wrong! We must do it again, only HARDER!

The Founders understood, and that is why they wrote a Constitution of defined, limited powers. And that's why that Constitution had to be folded, spindled, mutilated and made void.

After a two-month hiatus for berm work at the Tucson Rifle Club action range, we're back on! Registration begins at 8:00 AM. Sign in at the range office, but if all you're going to do is shoot the match, you don't need to pay the daily use range fee - it's part of the match entry fee for non-members. $10 for the first gun, $5 each for additional guns. First round downrange (hopefully) by about 8:45.

We're going to shoot Major (.40S&W and above), Minor (9mm and below), and .22 rimfire as separate classes, in a double-double-elimination contest. Line up three abreast, whoever wins two rounds takes that set. Lose two sets, you're eliminated from that class.

Smallest centerfire allowed: .38 Special. Hollowpoint and flat-point bullets work better at carrying pins off the tables than round-nose or FMJ bullets do, regardless of caliber.

You'll be paired off against other shooters in your division for head-to-head competition, again, best 2 out of 3 wins the set. Whoever's left at the end of the match with no more than one loss is the winner for that class. Bring enough ammo! Most tables take well over five shots. Even if you lose the round, you can keep shooting until you've cleared your table if you want to. Consider it practice for the next round.

The last match of the day will be a best two-out-of-three competition between the top Major and Minor shooters (unless, of course, it's the same person). Your only prize: the accolades of your peers.

Everyone who hangs around until the end of the shoot will be put in for a drawing. $1 of each entry goes into a pot. A drawing from the names of those present will be taken, and the winner gets the whole pot.

Friday, June 03, 2011

Breda posted recently about Luckygunner.com's use of "gunbunnies" at the recent Bullet Fest event, linking to an interview with Brian Crane. Completely unrelated to her topic, here's something I found very interesting:

Brian: I have an arrangement with them which was essentially tied to how the marketing of the business did. That’s going to be off the record what that actual arrangement is. Needless to say, I became one of the co-founders and they said, "Brian, go do our online marketing. Figure this stuff out."

Andrew: So what's the first thing that you do, Brian? You come in there, they put all this on your shoulders. What do you do?

Brian: Immediately start reaching out to the bloggers. So in our particular space, you had just a ton of sites that all had really solid back link profiles. I'd say there's probably at least 100 active bloggers that have page rank five sites where they're talking about guns. You start reaching out to them and working with them to promote Lucky Gunner through their sites. Holistically from a marketing standpoint, you want to get that community of influencers pushing us to their . . . twofold, to their actual readers but then also linking to us because it was building our back link profile very quickly as well.

I think the tipping point was essentially there was an event called the Gun Bloggers Rendezvous and not to go into a lot of details, but the Gun Bloggers Rendezvous does a raffle where they give away a bunch of stuff as part of this raffle and they were selling tickets online. And they were using PayPal as the channel for selling these tickets. And PayPal came in and said, "This has to do with guns. We're going to shut you down." They cut the raffle off in the middle of it. They essentially removed the component of being able to sell the tickets in the middle of this push to do the raffle, and so we stepped in and we were the back end for those raffle ticket sales. And that introduced us also to a much bigger community of these gun bloggers because people were like, "Awesome. You guys are helping out. Screw PayPal. We hate PayPal." It's an interesting space just because people are like . . . it's a very combative stance because the tech companies don't really get or like firearms.

Andrew: I saw some blog posts about you and with you on that issue. So apparently it was really heated, and you got a lot of attention and as you say a lot of props for coming in and helping out.

According to the interview, Luckygunner.com was in business for two months before he was brought on board. During that two months they were moving merchandise at a rate of about $250k per year. At the end of the year they'd done $3.2 million in sales.

Thursday, June 02, 2011

(W)e've passed myraids of regulations, so much so, that no one can possibly know all of them; and we resort to "Living Constitutions" so that we don't have to follow the actual laws we find inconvenient. And given that the purpose of the Constitution was to secure liberty this generally means that we find more ways to destroy liberty, in the guise of preserving it. -- Reader "Alpheus" in a comment to Saul Cornell Turns Up Again

Wednesday, June 01, 2011

Like a bad penny, this time via Instapundit. We get another glimpse into the jabberwocky world of Professor Saul Cornell. I've gone a few rounds with the good professor here at TSM, and he's not changed a whit, apparently, except for his location. He's moved up in the academic world. No longer an associate professor at Ohio State, he's now "Fordham History chair and a Senior Research Scholar in Residence at Yale Law School." Well, well!

And what does he have to say from such a lofty perch?

That idea that judges should interpret the Constitution by discovering the original intent or meaning of the text ignores the history of this country's founding.

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such.

It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.

Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.

It’s one thing for a state to amend its libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.

Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.

That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it's hard to talk people out of it — the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is the equivalent of, an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.

My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it's a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it's a good idea and enact it. You want the opposite — persuade them the other way. That's flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don't like it because it provides flexibility.

That's not the name of the game. Some people also seem to like it because they think it's a good liberal thing — that somehow this is a conservative/liberal battle, and conservatives like the old fashioned originalist Constitution and liberals ought to like the Living Constitution. That's not true either. The dividing line between those who believe in the Living Constitution and those who don't is not the dividing line between conservatives and liberals.

Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are, and the best example of that is two cases we announced some years ago on the same day, the same morning. One case was Romer v. Evans, in which the people of Colorado had enacted an amendment to the state constitution by plebiscite, which said that neither the state nor any subdivision of the state would add to the protected statuses against which private individuals cannot discriminate. The usual ones are race, religion, age, sex, disability and so forth. Would not add sexual preference — somebody thought that was a terrible idea, and, since it was a terrible idea, it must be unconstitutional. Brought a lawsuit, it came to the Supreme Court. And the Supreme Court said, “Yes, it is unconstitutional.” On the basis of — I don't know. The Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth.

--

Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work.

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.

If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English — whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.

Secondly, and this is the killer argument — I mean, it’s the best debaters argument — they say in politics you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

And finally, this is what I will conclude with although it is not on a happy note. The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed. Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.

And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.

I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean.

And that is what Professor Saul Cornell, Fordham History chair and a Senior Research Scholar in Residence at Yale Law School is advocating.

FAIR USE DISCLAIMER

This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. I use such material in an effort to advance understanding of political, human rights, economic, scientific, and social justice issues, etc. I believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is used without profit. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.